Feds dispute CIA leaker's contrition

1/22/13 4:00 PM EST

Former CIA officer John Kiriakou—who's expected to be sentenced Friday to two and a half years in prison for giving a journalist the name of another CIA officer involved in the terrorist interrogation program—is trying to minimize the seriousness of his actions and is falsely claiming to be a whistleblower, prosecutors charged in a court filing last week.

Kiriakou pled guilty in October to one count of violating the Intelligence Identities Protection Act. His plea was part of a plea bargain with the government that involved dismissing other pending charges and agreeing to a sentence of 30 months in prison. A judge is not compelled to approve such an agreed sentence but Judge Leonie Brinkema said at the plea hearing that she considered the 30-month sentence reasonable. On Friday, she's set to formally sentence Kiriakou, who'll become the first CIA officer ever convicted and sent to prison for leaking sensitive information to the media.

Prosecutors contend in their new filing (posted here) that Kiriakou still hasn't come to terms with what he did. They point to a front-page article the New York Times published earlier this month quoting Kiriakou saying he was unaware that the officer he admitted identifying to writer Matthew Cole was considered covert at the time. "If I'd known the [CIA] guy was still under cover...I would never have mentioned him," Kiriakou told the Times.

"Nothwithstanding his recent unsworn denials reported in the media...the defendant had specifically disavowed to this Court, under affirmation, that he had acted by 'accident or mistake,' and agreed instead that he acted 'wilfully,' that is, he 'knew the disclosure was illegal,'" prosecutors wrote. "To the extent defendant falsely denies elements of the offense or relevant conduct in a sentencing allocution, or again seeks to claim the misbegotten title of whistleblower, such a claim should be squarely rejected and considered as a repudiation of his acceptance of responsibility for the criminal conduct he committed."

"Kiriakou intentionally betrayed the trust that had been bestowed upon him by the United States and he betrayed numerous former colleagues who serve the United States in circumstances where silence is their only safety," prosecutors wrote.

Prosecutors filed a "victim impact statement" Friday from the officer Kiriakou allegedly outed in the charge to which he pled guilty. It is under seal.

The government main filing goes on to repeat the prosecution's assertions that the decision to bring the case had nothing to do with Kiriakou being the first CIA officer to publicly discuss the CIA's use of waterboarding against terrorist suspects—a technique many view as torture and a war crime. Prosecutors note that in his initial round of interviews in 2007, Kiriakou said he didn't object to the tactic and considered it "something we needed to do."

One of Kiriakou's defense lawyers, Robert Trout, declined to comment to POLITICO Tuesday on the prosecution's claims. Kiriakou's sentencing filing is not yet public. It awaits a review for classified information.

However, a lawyer who handles whistleblower-related issues for Kiriakou, Jesselyn Radack, said Tuesday that the government's arguments about the Times article and Kiriakou's whistleblower status are mistaken.

Radack said Kiriakou wasn't undermining or contradicting his plea when he spoke to the Times. "The interviews referenced in the New York Times occurred before his plea agreement," she said.

Radack, a whistleblower-law expert with the Government Accountability Project, also said Kiriakou's remarks or thoughts at the time he disclosed the waterboarding weren't relevant to whether he should be considered a whistleblower under the law. He's said since that he didn't know the full details of the program at the time and that others in the agency gave him inaccurate information about its effectiveness.

"John meets the textbook definition of whistleblower. He revealed gross abuse and illegality and the world seems to recognize him as a whistleblower. It's unfortunate the government can't," Radack said.

While Kiriakou's arguments regarding sentencing are not public (and may well be moot given the agreed sentence), POLITICO obtained several supportive letters that former colleagues submitted to the court on his behalf. Many of the letter writers note Kiriakou's work in the capture of Al Qaeda operative Abu Zubaydah in Pakistan in 2002.

"Many years later after the capture of Abu Zubaydah, people at work would stop him in the hallway to thank him for his service to our country, and John would laugh and remark to me how amazing it was that strangers would stop to speak to him," one former colleague at CIA, Elizabeth Reidel, recalled. "I recognize that he has pled guilty to a crime but staunchly believe that he remains a man of upright character, decency and integrity," wrote Riedel, a veteran analyst. (Her husband, former CIA official Bruce Riedel, chaired the interagency review on Pakistan and Afghanistan policy President Barack Obama ordered as he took office in 2009.)

"John is a highly ethical individual," wrote former CIA officer Gene Coyle. "I actually use John as a positive example in my classes that I teach at Indiana University when discussing matters of consicence and ethical behavior by government employees, and where he has been a guest speaker....Hopefully, [his] time in prison will be as short as the law allows."

"I cannot condone the crime to which John has pleaded guilty, but John Kiriakou is a fundamentally decent, loyal, honorable, and patriotic man who has repeatedly risked his life for our country and who has already suffered economic ruin as a result of this case," wrote Donald Roberts, a former foreign service officer who worked with Kiriakou in Bahrain.